Engaging with Theory – Why Bother?

I may be biased, as theory is currently my main area of practice (here and here), but I am deeply convinced that (international) lawyers should engage more with theory.

One of the peculiar features of the official discourse of international law is to look down at theory. I once heard a colleague say that the Faculty should hire more ‘hard’ lawyers and less ‘soft’ lawyers. I reacted with bewilderment at such a novel qualification, asking what he meant. He said that hard law was the real law that is practised in courtrooms and for which there is a high demand in the market. All those people dealing with soft law, such as ‘theory, human rights and the like’, should only have a secondary role in a serious legal curriculum. Rather than being just a peculiar interpretation of soft law, my colleague’s statement hardly hid a conspicuous cultural bias against theory and intellectual activities.

By the same token, yet another colleague of mine once lay claim to be in need of more assistants compared to his other colleagues on the basis that she taught ‘hard black letter law courses’ and not some ‘wishy-washy’ theory ones. Admittedly, the opposite can also be true. I can perfectly well envisage a sectarian group of international law theorists looking down with contempt at all those practitioners who have not read Foucault, Marx and Koskenniemi (please do not attach any particular significance to this random choice of names!). Yet, there is no doubt that in the traditional discourse of international law the still predominant attitude is to vilify theoretical and philosophical investigations and to consider as relevant only the doctrinal conceptualisation of existing concepts and categories.

The fact that international practice seems to be considered by many as the ultimate form of disciplinary recognition is reflective of a profession that for a long time has denigrated intellectual inquiries that go beyond the mere systematisation and rationalisation of legal materials. The scope for critical inquiry and the development of alternative theoretical approaches to international law is a relatively recent phenomenon, and its overall impact on the discipline’s canons and self-perception still to be fully appreciated.

The traditional circumspection of the lawyerly world vis-à-vis theory might be explained against the deeply rooted conviction that law – and international law alike – is a practical craft and professional vocation that demands no particular theoretical background. In many law schools – fortunately with some exceptions – courses involving philosophy, sociology and the general theory of law are not particularly popular. Many law schools do not even include these subjects in their curriculum, as they are widely looked down on as either having no obvious practical utility or as being irrelevant to the profession. Similarly, many members of the profession would concur that whatever time is spent asking questions of a theoretical nature is time wasted. This posture of anti-intellectualism is clearly traceable to most law schools and to many professional circles. It must be conceded, however, that a certain way of producing the academic discourse has almost certainly contributed to the bias against theory. A certain habit to conceive of fancy intellectual frames removed from the underlying social realities, which I call ‘armchair theorising’, is deleterious to theory. The unreasonable attempt to project one’s preconceived theoretical frameworks into the practice of social agents, or to impose an ideal of absolute and rational coherence in an otherwise highly heterogeneous practice, are also widespread reflexes in academia and, possibly, a reason for making theory not particularly credible.

Yet, this is no excuse for failing to perceive the theoretical frameworks at work in practice. To hold that practice is the only thing that matters and that is worthy of lawyerly engagement remains oblivious to the simple fact that any practice presupposes a theory, a way of thinking, and a mindset, which are formed, developed and used to the detriment of other theories, ways of thinking and mindsets. Practitioners, even when not conscious of it, always presuppose a ‘theory’ or ‘method’. Ignoring the psychological frames that govern the way in which we think and do law carries with it non-negligible normative consequences. It is theories and methods that help provide the players of the game in international law with the necessary level of credibility and persuasiveness. Most of the time theory also provides the framework for justifying practice and the choices that lawyers make.

Another reason for the widespread aversion to theory in (international) law could be traced to the distinct cultural trend that privileges the view of the law as something technical requiring highly specialized skills. This ‘managerial’ vision has contributed to vilifying the role and function of critical theory in international legal scholarship. In a strange reversal of perspective, the scholar is required to bring technical expertise and to put this to good use in practice. Intellectual work and theory are often looked down at with contempt. Contemporary professional culture encourages specialisation, where knowledge is conceived as an incremental process of acquisition of additional skills in a given domain. To be an expert means to possess an in depth knowledge of a (frequently) tiny field. To look at the ‘big picture’ is often derided as demonstrating a lack of focus. To zoom out from one’s field of specialisation or to ask questions of a theoretical character is perceived as highly questionable and as an undue distraction in a professional itinerary.

How to redress the disconnect between the theoretical discourse on international law and the social practice of international law is indeed the main challenge for international law scholars. It is up to them to bring theory back to the forefront of debate and to have it perform its vital function as critical conscience of the discipline and of the international legal system. It would be a pity if general questions about the morality of coercive intervention or remedial secession were questions reserved for specialists on the use of force and territorial disputes, rather than also being regarded as philosophical or theoretical questions. Such issues, bearing on justice and the fundamental values of the international community, should be the bread and butter of international legal scholarship. Young scholars should be encouraged not to avoid them but rather to tackle them head-on.

Certain questions cannot be answered by technical skills. Why is international law not providing adequate solutions to such compelling international issues as terrorism and global security? How is it that it cannot prevent the weekly massacres of hundreds or even thousands of refugees fleeing from extreme poverty or endemic conflict in the Global South and trying to make it into some wealthier country of the North? Why does it let such bloodshed occur without intervention in Syria? Who is or should be accountable for the many evils of the world, ranging from environmental degradation and the outbursts of contagious diseases to the countless human rights violations that occur everyday in the world? Why is international law conspicuously absent from the regulation of international finance, thus exposing the world to recurrent calamitous financial crises?

One has to ask this type of questions to understand what international law is for, how it is made and by whom, and what goals it purports to pursue. These are questions that go well beyond the purview of expertise. They need be answered against a wider background, in which the rules of the different regimes are part of the context but do not necessarily provide the answer. A look at the big picture is warranted if one wants to make sense of what is going on in international law nowadays.

The challenge and value of engaging with theory is also to open up the range of options one has to address an issue, solve a problem, and question the wisdom of one’s choices. More simply, one should look at theory just for the sake of wondering what the world would look like if only one were ready to see things in a different light or from a different perspective. To increase the number of possibilities inevitably entails emphasising the moment of choice. If law is choice, the consequences of doing something or interpreting the law in one way rather than another ought to be known and carefully assessed. This should carry with it an enhanced sense of responsibility, as asking theoretical questions about the sense and the consequences of what one does and about the reasons for doing it should produce reflexive knowledge and induce caution in choosing what course of action to take.

The disempowerment of law as merely objective expertise and the reconnection of international law with normative and political questions should eventually lead to a new empowerment of international legal scholarship, characterised by more awareness of the social fabric in which international law is embedded as well as of the political and moral consequences of choices made and justified under international law. This is what theory is about and, arguably, the very reason why one should bother to engage with it.